Can You Bail Out on Federal Charges? – Bail, Federal Hold, and Detention Hearings

Can You Bail Out on Federal Charges? – Bail, Federal Hold, and Detention Hearings

What Is a Federal Hold on an Inmate?

When a suspect is arrested and charged with a crime under federal law, they will be detained until a hearing can be held in which the appropriate judge makes a determination as to whether or not they should remain detained.

Under the federal Bail Reform Act of 1984, the judge must decide to either release the defendant on the his or her own recognizance (“R.O.R.”) or execution of a bond, release the defendant with conditions or a combination of conditions, or continue detention.

Can You Bail Out on Federal Charges?

Unlike the state courts, the federal courts do not consider the money possessed or able to be raised by a criminal defendant as a reason to detain or not detain the defendant. Instead, federal judges will focus on the stability, reliability, risk of flight and danger to the community of a defendant, along with other factors laid out by Congress in the Bail Reform Act.

A defendant should not anticipate being able to “pay his way” out of detention or bail on federal charges, but with the help of an attorney, a defendant can put together a compelling argument for being a good candidate for release.

The Federal Criminal Pretrial Process

After a defendant is arrested, he or she is brought before the federal Magistrate Judge for an initial appearance and Detention Hearing within three days of the arrest under Federal Rules of Criminal Procedure 5 and 5.1.

At the Detention Hearing, the defendant will learn of the charges against them, whether probable cause exists for the charges and the detention, and whether any set of conditions has been determined by the judge to be adequate to reasonably assure the appearance by the defendant at trial.

What is a Pretrial Interview?

A Pretrial Interview is conducted after arrest but before the Detention Hearing by a Pretrial Services Officer. The officer will interview the arrestee for background information, such as biographical information related to the arrestee’s family, employment, education and financial status.

The Fifth Amendment of the Constitution protects the arrestee from having to answer any questions about the alleged crime, and the officer is not supposed to ask. After the interview, the officer compiles a report which summarizes all available information, then meets with the judge to share the report, and makes a recommendation as to detention versus release. Generally, a judge will give strong consideration to the officer’s report.

What Is a Detention Hearing?

At the Detention Hearing in the federal court, the Magistrate Judge or District Judge will consider the findings of the Pretrial Services Officer and examine on the record whether the arrestee is a flight risk or a danger to the community, along with other factors set forth in the Bail Reform Act.

Statute 18 U.S.C. §3142

This section of the Bail Reform Act is guided by the principle of the Eighth Amendment that excessive bail should not be required, excessive fines should not be imposed, and unusual punishments should not be inflicted on a criminal defendant.

The default position of the Bail Reform Act is that the release of a person on his or her personal recognizance or an unsecured appearance bond is appropriate unless such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

Release on conditions is the backup to the default position. Release of a person on conditions should be subject to “the least restrictive condition, or combination of conditions…that will reasonably assure the appearance of the person as required and the safety of any other person and the community…” Pretrial Detention is appropriate only if “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.

Under §3142 (e)(3), the Bail Reform Act lists those offenses which carry a “presumption of detention,” including drug cases with a maximum penalty of ten (10) or more years of incarceration, use of a firearm in connection with drug charges, acts of terrorism, human trafficking, and most offenses against minors.

The Bail Reform Act also sets forth the factors to be considered by the judge on the question of release of detention, including the nature and circumstances of the offense, the weight of the evidence against the person, the characteristics of the person including physical and mental condition, family ties, employment, financial resources, residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, record concerning appearance at court proceedings, whether the person was already on parole when the offense was committed, and the danger the person may pose to others in the community.

Pretrial Release Conditions for Bail on Federal Charges

Some common conditions which may be imposed by a judge include:

Surrender of passports

Limitation of the ability to travel outside of the federal court’s jurisdiction

Surrender of any firearms

Abstinence from drug and alcohol use

Establishment of a curfew

Requirement to wear an ankle GPS monitor

Requirement not to associate with certain persons or institutions

Requirement to remain employed

Requirement to take part in a court-ordered mental health evaluation

Other specific restrictions applicable to the case

How to Appeal Unreasonable Conditions

If the judge orders conditions upon release which are unreasonable, the Eighth Amendment provides the legal basis for a defendant’s appeal. Procedurally, most detention orders are entered by the Magistrate Judge, which is the lowest-level judge in the federal courts. These orders are therefore appealable at the next level, before the District Judge. The decision of the District Judge is appealable to the Federal Circuit Court of Appeals. All orders are reviewed de novo, meaning the next highest level of appeal does not have to defer to any issues of fact or law found by the previous judge.

What is a Signature Bond in Federal Court?

A Pretrial Release Signature Bond is a promise to return for the next-scheduled court appearance without a need to put forward any money or financial collateral. The court will set a bail amount and the defendant, defendant’s family member or person they are staying with may be allowed to sign a document promising to pay the bail amount to the federal government if he or she fails to appear at subsequent court hearings as required. The Signature Bond, a common practice now in federal court, has replaced the traditional need to pay a bail bondsman fees for “bailing” someone out of jail.

What Happens after Pretrial Release?

After pretrial release, the defendant is no longer detained, subject to any conditions imposed by the court. The defendant awaits his or her next scheduled court appearance and must return to court for the next hearing or trial.

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